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Zoning Board Continues Appeal for Changeable Electronic Pricing

On the heels of the Zoning Board’s decision to grant a variance to allow a sign with changeable electronic pricing at the Global gas station on Hampton Drive, another gas station is seeking relief from an administrative decision prohibiting its use of the technology.

The Zoning Board of Adjustment (ZBA) continued the Nov. 18 hearing of the appeal after a representative for the Shell Gas Station raised questions related to the legality of the decision to prohibit the change.

“We feel this is a natural expansion of the existing use,” said Peter March, president of New Hampshire Signs. “Nothing much will change from what was previously there. We applied to reface the sign and add electronic readers to it. The sign permit was denied based on the merit of the electronic readers.”

However, March argued that because the 20-foot sign was once conforming, and the Town’s code was changed in the life of the sign, the change to electronic messaging is permitted under State law on non-conforming structures.

Code Enforcement Officer Richard Canuel said he based his decision to deny the electronic messaging on provisions of the Town’s Ordinance stating a legally existing non-conforming sign loses its protected status and must be brought into compliance with the Ordinance if there are any changes to the sign’s copy.

But March pointed out New Hampshire RSA 674:16, which states a zoning ordinance adopted under the RSA “shall apply to any alteration of a building for use for a purpose or in a manner which is substantially different from the use to which it was put before alteration,” trumps the Town’s Ordinance.

“No change of use is anticipated. The site was a gas station, and will remain a gas station,” he said.

Further, March argued that because the changeable copy does not change substantially the nature of the sign, or the use of the parcel, their appeal should be granted.

“This is a natural evolution in terms of this new technology, and I would argue the LED use change is common around the State and country,” he said, noting the purpose of the shift is to make it easier for drivers to read gas prices, and to reduce the risk of injury to employees changing the prices manually in inclement New England weather. “It’s a miserable job changing the plastic numbers on the sign in winter or rainy conditions. This eliminates the need to do that.”

March noted the shift to electronically changeable pricing would not have an adverse affect on the neighborhood as it’s located in a well-lit, commercial area; and the gas station doesn’t have any residential abutters.

“My decision was very narrowly based exclusively on the technology that is prohibited by the Zoning Ordinance,” said Canuel, noting the State law does trump local Ordinances.

Chairman James Smith said if March wants to argue from a legal standpoint the administrative decision was contrary to State law, the case would be more applicable to a request for a variance.

“In my mind, if those issues are brought up, we would probably want to have some sort of a legal advice,” he said. “You’re getting into case law, which is outside the realm of what we’re deciding tonight. I think the problem is this is an appeal, and all we have to decide is whether or not (Canuel’s) decision was correct.”

March said they were granted relief in a similar appeal in Windham, where electronic changeable pricing was denied for a gas station sign.

The Board voted unanimously to continue the hearing until next month, and to seek legal counsel.